February 2008 Archives

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» About – nameless for now –

Thomas R. Bruce is co-founder and director of the Legal Information Institute at the Cornell Law School, the first legal-information web site in the world. He has been the principal technical architect for online legal resources ranging from fourteenth-century law texts to the current decisions of the United States Supreme Court. Mr. Bruce has consulted on Internet matters for numerous commercial and public organizations on four continents. He has been a fellow of the Center for Online Dispute Resolution at the University of Massachusetts, and a Senior International Fellow at the University of Melbourne Law School. He is an affiliated researcher in Cornell’s program in Information Science, where he works closely with faculty and students who experiment with the application of natural-language processing techniques to legal texts. He currently serves as a member of the ABA Administrative Law Section Special Committee on e-Rulemaking, and is a longtime member of the board of directors of the Center for Computer-Assisted Legal Instruction. He has been known to play loud music at odd hours.

Tom Bruce of LII has his own blog, which is currently unnamed; but well worth your attention.

ｻ About LII Announce

Announcements, featured content, and the occasional bizarre legal information factoid from the LII.

LII Announce looks very good.

About NCJRS

NCJRS is a federally funded resource offering justice and substance abuse information to support research, policy, and program development worldwide.

NCJRS services and resources are available to anyone interested in crime, victim assistance, and public safety including policymakers, practitioners, researchers, educators, community leaders, and the general public.

NCJRS offers a range of services and resources, balancing the information needs of the field with the technological means to receive and access support.

NCJRS offers extensive reference and referral services to help you find answers to your questions about crime and justice-related research, policy, and practice.

ADMINISTRATIVE LAW, CIVIL PROCEDURE, CONTRACTS, DISPUTE RESOLUTION & ARBITRATION, ENTERTAINMENT LAW

Preston v. Ferrer, No. 06-1463
When parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the Federal Arbitration Act (FAA). In a dispute involving the question of whether an entertainment industry attorney acted as an unlicensed talent agent in violation of California's Talent Agencies Act, or as a personal manager not governed by the TAA, judgment for respondent-talent granting jurisdiction to the state Labor Commissioner is reversed and remanded.

ADMINISTRATIVE LAW, DRUGS & BIOTECH, FOOD & BEVERAGES, HEALTH LAW, INJURY AND TORT LAW, PRODUCT LIABILITY

Riegel v. Medtronic, No. 06-179
The pre-emption clause enacted in the Medical Device Amendments of 1976 (MDA) bars common-law claims challenging the safety or effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA).

COMMERCIAL LAW, CONSTITUTIONAL LAW, GOVERNMENT LAW, TRANSPORTATION

Rowe v. New Hampshire Motor Transp. Ass'n, No. 06-457
A federal statute that prohibits states from enacting any law "related to" a motor carrier "price, route, or service" preempts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the state.

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS

Danforth v. Minnesota, No. 06–8273
Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague.

ERISA, LABOR & EMPLOYMENT LAW

LaRue v. DeWolff, Boberg & Assocs., Inc., No. 06-856
Although section 502(a)(2) of the Employee Retirement Income Security Act of 1974 (ERISA) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant's individual account.

Law Day 2008 (ABA Division for Public Education)

Law Day 2008 will explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society.

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All of you who are planning for Law Day programs and celebrations for your local bar associations can find everything you need here.

Whether this is your first time as Law Day Chair or you are "Chair for Life", you can download everything you'll need and sign up for the Law Day listserv.

Don't forget your Free Law Day Planning Guide.

Meet iPaper | Scribd

iPaper is a document format built for the Internet. Like a YouTube video, iPaper documents are Flash widgets which you embed in your existing web pages. PDF, Word, PowerPoint, and many other document formats can all be displayed on the web using iPaper.

View a video demo.

ELECTIONS, GOVERNMENT LAW

Alessio v. Carey, No. 72
In an action by a candidate for Town Justice seeking recanvassing of seven invalidated absentee ballots, the Supreme Court had subject matter jurisdiction over this special proceeding, brought under Election Law section 16-106 (5), contrary to the Appellate Division's view.

Law.com - MySpace 'Friend Request' Could Violate Protection Order

MySpace 'Friend Request' Could Violate Protection Order
Mark Fass
New York Law Journal
February 14, 2008

In a case of apparent first impression, a Staten Island, N.Y., judge has ruled that a MySpace "friend request" can constitute a violation of a temporary order of protection.

"While it is true that the person who received the 'friend request' could simply deny the request to become 'friends,' that request was still a contact, and 'no contact' was allowed by the order of protection," Criminal Court Judge Matthew A. Sciarrino Jr. wrote in People v. Fernino, 07RI007322. "It is no different than if the defendant arranged for any agent to make known to a claimant, 'Your former friend wants to communicate with you. Are you interested?'"

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Read entire article.

J.R.R. Tolkien Trust Sues New Line Cinema for Portion of 'Lord of the Rings' Profits

Tolkien Trust v. New Line Cinema Corp.

J.R.R. Tolkien’s Trust Sues New Line Cinema
Over 'Lord of the Rings' Profits
February 11, 2008

The trust that manages the estate of J.R.R. Tolkein’s “Lord of the Rings” trilogy and intellectual property sued New Line Cinema, the Hollywood studio that obtained the rights to produce films based upon his works.

The trust slams New Line, alleging that it’s been “engag[ing] in the infamous practice of ‘Hollywood accounting’ by using various ‘bookkeeping’ devices to delay paying Tolkien’s trust.

Women Lawyers--Back on Track

The ubiquitous Nicole Black has another very interesting blawg. Her goal is to provide women lawyers with resources and information about the legal field and to explore how they do/can happily and successfully fit into it.

To that end she'll be aggregating articles relating to women in the legal profession and will provide a weekly round up of relevant and interesting posts from the legal blogosphere as well.

Nicole will post her own commentary on issues surrounding women lawyers in the form of a video blog (vlog) once each week.

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Hat Tip to LegalEase Blog.

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FREE Printable Calendars : Printable Custom Calendar from ePrintable.com

ePrintable.com is a website where you can generate printable weekly planners and monthly and yearly calendars for free. With just a few clicks you will be able to personalize these calendars by adding an image and any text you'd like. Just select the calendar type and choose from their collection of pre-selected images and quotes, click the button, and your printable 2008 calendar is ready to be printed out! Don't forget to bookmark this site if you like it!

CIVIL PROCEDURE, EVIDENCE, INJURY AND TORT LAW

Ornstein v. New York City Health & Hosps. Corp., No. 12
In case where plaintiff, a hospital nurse, was exposed to HIV when she was stuck by a blood-filled hypodermic needle that had been left in the bed of an AIDS patient, but she did not contract HIV, restricting plaintiff to only presenting proof that she experienced mental anguish for a period of six months following the needle-stick is reversed as plaintiff produced prima facie proof that she suffered from post traumatic stress disorder and other emotional distress for more than six months after exposure and, thus, she should have been allowed to seek recovery for those injuries at trial.

CIVIL PROCEDURE, SECURITIES LAW

Financial Indus. Regulatory Auth., Inc. v. Fiero, No. 2
Judgment against defendant securities representative for refusal to pay fines and costs imposed for carrying out a "bear raid" and violating federal securities laws and rules, and summary judgment for plaintiff, is reversed as state courts do not have subject matter jurisdiction over this lawsuit.

CONTRACTS, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

Riverside Syndicate, Inc. v. Munroe, No. 16
An agreement by tenants to pay an illegal rent for a rent-stabilized apartment, in exchange for an agreement by the landlord to let the tenants use the apartment as a second home, is void and cannot be enforced by either party.

GOVERNMENT LAW, INJURY AND TORT LAW

Yarborough v. City of New York, No. 3
In case where plaintiff tripped and fell in a pothole, dismissal of complaint by appellate division is affirmed as defendant city was entitled to summary judgment since plaintiff failed to raise a triable question of fact as to whether city created a defective condition within the meaning of an exception, which requires that the affirmative negligence of the city immediately result in the existence of a dangerous condition.

INDIAN LAW, PROPERTY LAW & REAL ESTATE

Spota v. Jackson, No. 1
New York Indian Law section 8 does not grant the County Court the discretion to determine, independent of the Indian nation, that respondent was not an "intruder" upon tribal land.

Issuu - You Publish

Have a document? Simply upload it to Issuu. It's free, and you can post it anywhere. On your website, blog and even on Myspace and Facebook.

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Welcome to the Division of Administrative Rules

The complete unofficial NYCRR is now available online. This initial release of the online NYCRR does not yet include a table of contents. To find desired text, visitors simply enter a search term or NYCRR citation. A table of contents will be available in the near future.

The NYCRR primarily contains state agency rules and regulations adopted under the State Administrative Procedure Act (SAPA). The 22 Titles include one for each state department, one for miscellaneous agencies and one for the Judiciary. The Office of Court Administration and the Judiciary are exempt from SAPA requirements.

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Hat Tip to Paul Gillan of S U P R A S P I N A T U S, the unofficial blog of the NYSBA Health Law Section, which deserves your attention on a regular basis.

From Law Technology News:

The LegalTech New York 2008 conference, featuring hundreds of exhibitors, dozens of speakers and plenty of parties over three days, kicks off today in New York. Law.com's Legal Blog Watch section, in partnership with Law Technology News magazine, brings you blogger coverage throughout the 27th annual event.

Legal Ease Blog: More on bad clients- How do you identify them?

Many 'bad clients' exhibit these characteristics or warning signs:

They are overly concerned about the fee, ask about the fee before you have an opportunity to discuss their legal problem, won't talk to you about their budget or don't know what it is;
They have tunnel vision about the matter and don't want to listen to new ideas, aren't interested in other options, or can't face reality about their role in creating the situation;
Their expectations are over-exaggerated, particularly for their budget or time limitations;
They need everything in a rush;
They don't keep the initial appointment, show up late, or fail to call when they say they will (particularly in combination with the previous warning sign);
They don't listen or don't understand simple initial instructions;
They take a long time to return your retainer agreement or to provide requested documents or materials;
They've fired (or been fired by) several lawyers before you;
They don't exhibit an understanding of the issues involved, even after you explain them;
They don't show respect to you or to other attorneys or staff in the office;

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Read entire article by Allison C. Shields on her very useful Legal Ease Blog.

Patricia Martinez v. County of Monroe, 1562 CA 06-02591 (43-05)

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“[A]bsent any New York statute expressing clearly the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad, there is no positive law in this jurisdiction” to prohibit recognition of a marriage that would have been invalid if solemnized in New York (May, 305 NY at 493 [internal quotation marks omitted]; see also Van Voorhis, 86 NY at 37). The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (May, 305 NY at 493), and that cannot be said here.

Defendants nevertheless contend that recognition of plaintiff’s same-sex marriage is contrary to the public policy of New York, as articulated by the Court of Appeals in Hernandez v Robles (7 NY3d 338), and thus falls within an exception to the rule requiring recognition of valid foreign marriages. We reject that contention. Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York (see id. at 356). The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages (see id. at 358-359) and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state.

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NYSBA

Click the Play Button on this site to watch an excerpt from the January 30, 2008, live webcast of the Presidential Summit at the NYSBA Annual Meeting. "Youth at Risk" and "Globalization" were both on the agenda.

I was impressed by the video quality. Even in the full screen mode, there was very little degradation of the video signal.

The camera was well-placed and not intrusive. The presentations were almost like being in the room. It was fun to spot familiar faces in the crowd.

Congratulations to President Kate Madigan and her Electronics Communications Task Force for this historic broadcast. FULL DISCLOSURE: this blogger is a member of the ectf.

More content will be available soon.

About Solosez.net - ABA's Solo Center

SoloSez (pronounced 'so-low-says') is an electronic mail discussion list that has matured into a worldwide community of more than 1,800 solo and small firm practitioners. SoloSez is an on-line resource for lawyers to share and obtain information on a wide range of personal and professional subjects: legal questions, client referrals, topical issues, practice technology problems and solutions, travel information, jokes, or just to gloat about a court victory or vent about a local judge. Hosted by the ABA General Practice, Solo and Small Firm Division, this Internet tool is changing the way many solos practice law.

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Subscribe to Solosez

You might want to try the digest option if the traffic is messages is too heavy.

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Join Inhabitat & Marc Alt Partners, industry leaders, entrepreneurs, journalists, and designers as they gather to discuss the business case for the greening of the consumer electronics industry.

Greener Gadgets 2008 Live Webcast

Legal Ease Blog: Do Something - Take Action on Interruptions

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On average, it takes approximately 10 minutes to get back on track after each interruption. The vast majority of interruptions (up to 80%) are typically of 'little' or 'no' value. If you're interrupted 20 times a day (which isn't tough if you're constantly checking email), you lose over two productive hours a day.
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Allison C. Shields has some helpful hints on how to manage your interruptions.

Read her entire article.
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Allison's LEGALease blog is available through RSS and email. Her law office management insights are especially helpful for the small firm and solo practitioner.